to about three times the interest on the mort- 99 N. E. 690, and cases cited. On this record gage. The only definite estimate found in we cannot escape the conclusion that the the record as to the value of this property is findings of the decree and the recommenda$40,000. It is somewhat difficult to believe tions of the master as to the collusion of the that Julius Friedman would sit by and allow two Friedmans, father and son, are clearly the period of redemption to run and allow right. his son to take the property from him by [4] After the case was referred to the masmerely raising $6,000 in cash. The evidence ter in chancery, Julius Friedman died, and tends to show that he had in his hands his administratrix and heirs were made parapproximately $2,000 in rent belonging to the ties to the suit, but David J. Friedman, in his appellee. This, added to the rentals earned own right, alone perfected this appeal. His during the period of redemption, would have counsel contend that the testimony as to the been almost sufficient to redeem the property declarations and statements of Julius Friedunder such an arrangement as was made by man as to his ownership of the building, David J. Friedman with the society. Mani- made when David J. Friedman was not presfestly the society was willing to make any ent, were incompetent as against appellant. reasonable arrangement and let the loan con- Conspiracy and fraud were charged here, tinue, for after the foreclosure sale it again and, as we have held, the evidence tends to made a large loan to David J. Friedman, ap- prove those charges; hence the cases cited proximately the same as the original loan on by counsel for appellant on this point do not the property. From a study of the evidence apply. See 2 Cyc. 104, and cases cited; 3 it seems clear that the reason Julius Fried- Greenleaf on Evidence, & 94. man was willing to sit by and allow the [5] Counsel for appellant further contend period of redemption to pass was that the that the evidence to show the express trust son's ownership of the certificate of sale was, which they claim was found by the decree in fact, his ownership and for his benefit; was none of it in writing, and that therefore that he had his son redeem it in this way such trust was not proved as against the in order, if possible, to deprive his codefend- statute of frauds. Appellant did not plead ant of her share. Appellee, on her part, did the statute, and therefore cannot avail himnot sit idly by without attempting to do any- self of it. Highley v. Metzger, 187 Ill. 237, 58 thing. The evidence shows that negotiations N. E. 407; Clayton v. Lemen, 233 Ill. 435, 84 were constantly going on in her behalf in an N. E. 691, and cases cited. The argument of

. endeavor to come to some settlement with counsel that it was not necessary to plead Julius Friedman, whereby, before the fore- the statute, as they could not anticipate the closure sale, some adjustment could be made proof to be made by appellee, is without force. to keep the property in the hands of the The case of Taylor v. Merrill, 55 Ill. 52, cited original owners, and after the foreclosure en- by them on this point, is not applicable to deavors were made to come to some settle- the facts of this case. ment with Friedman, so that the property [6] Counsel for appellant further contend could be redeemed by one or both of them. that there is a variance between the allegaThe evidence on this last point is not contra- tions of the bill and the findings of the decree; dicted. It shows that Julius Friedman had that the bill alleged that Julius Friedman no desire to come to an agreement with his purchased the certificate through his son, for cotenant. His delay and lack of interest can himself, while the decree found that David only be consistently explained on the theory J. Friedman advanced the money for the that he knew the matter was provided for, so father, with an agreement to convey the far as his interests were concerned. We premises to the father upon receipt of the rarely expect to find direct and positive evi- sum so paid. There is practically no subdence showing fraud. Like all other facts, stantial difference in the allegations of the it may be proved by circumstances which con- bill and the findings of the decree on this vince the mind of its existence. Schwarz v. point. Reznick, 257 Ill. 479, 100 N. E. 900, and cases [7] It is further contended by appellant cited.

that the decree is incorrect in finding that he [3] Where a cotenant enters into-negotia- should be repaid only one-half of the amount tions with a third person, whereby such third he paid to the society for the master's cerperson agrees to bid in property, and after tificate; that there was no privity existing the period of redemption expires transfers to between him and appellee at the time of the the cotenant, the transaction is fraudulent, purchase of said certificate; that she was and the purchasing cotenant, whether he not his cotenant; and that the decree should buys himself or through an agent, acquires have required that he be paid back all he no title against his cotenants. An agent can- paid to said society. In view of the conclunot acquire title at a sale of land. Whatever sions already reached in this opinion that interest he does acquire will be held by him David J. Friedman was acting as the agent in trust for his principal. A purchase by an of his father in this purchase, the decree agent of one of the cotenants will generally rightly found that, subject to one-half of the be allowed no further effect than if made by mortgage to the society, the title to one-half on the payment of one-half of the amount 5. DEATH (8 10*) — ACTIONS - SURVIVAL OF paid out by said David J. Friedman in pur

RIGHT OF ACTION OF PERSON INJURED. chasing said certificate. A settlement should administration of estates approved April 1,

Under the amendment to the act on the be had between appellee and David J. Fried-1872 (Laws 1871-72, p. 108) $123, providing man the same as if the property stood in the that actions for injury to the person survive name of appellee and the heirs of Julius the death of the person injured, the commonFriedman. The trial court, in making the when the death was not caused by the injuries

law right of action for injuries survives only accounting ordered by the decree between all for which suit is brought. the various interests, can make such a find- [Ed. Note.-For other cases, see Death, Dec. ing as will protect the interests of all par- Dig. $ 10.*] ties in accordance with the views herein set 6. COURTS (8.90*) - RULES OF DECISION-PREforth.

VIOUS DECISIONS AS PRECEDENT.

Previous decisions of the Supreme Court The decree of the circuit court will be that the right of an administrator to recover affirmed.

for the death of a child is barred by the conDecree afirmed.

tributory negligence of the father have established a rule which will not be lightly annulled.

[Ed. Note.-For other cases, see Courts, (259 Ill. 424.) :

Cent. Dig. 88 313-321, 351; Dec. Dig. & 90.*] OHNESORGE et al. v. CHICAGO CITY RY. Appeal from Branch B Appellate Court, CO.

First District, on Appeal from Superior

Court, Cook County; Homer Abbott, Judge. (Supreme Court of Illinois. June 18, 1913. Rehearing Denied Oct. 16, 1913.)

Action by Frederick E. Ohnesorge and oth

ers against the Chicago City Railway Com1. APPEAL AND ERROR ($ 1095*)_REVIEW - pany. Judgment for the plaintiff in the Su

DECISION OF INTERMEDIATE COURT-QUESTIONS OF FACT.

perior Court was reversed by the Appellate In an action by the administrator for the Court, which granted a certificate of imdeath of an infant, where the Appellate Court portance and allowed plaintiffs to appeal to found that the father of deceased had personal the Supreme Court. Affirmed. charge of him at the time of the accident, and that the father's negligence contributed to the James C. McShane, of Chicago, for appesdeath, such finding is conclusive on the Su

lants. Franklin B. Hussey and C. Le Roy preme Court after the Appellate Court grants a certificate of importance and an appeal, and Brown, both of Chicago (Leonard A. Busby, the only question is whether the law was prop- of Chicago, of counsel), for appellee. erly applied by the Appellate Court to the facts as found. [Ed. Note.-For other cases, see Appeal and

VICKERS, J. Frederick E. Ohnesorge Error, Cent. Dig. $8 4268, 4329, 4330; Dec. and George D. Stuart, as administrators of Dig. $ 1095.*]

the estate of William A. Ohnesorge, deceas2. NEGLIGENCE (8 95*)

$

IMPUTED NEGLIed, brought an action in case in the superior GENCE-PARENT.

court of Cook county against the Chicago In an action by a child for personal inju- City Railway Company and obtained a verries not resulting in death, the contributory dict for $2,500, on which judgment was aftnegligence of the father is no bar to recovery.

[Ed. Note.-For other cases, see Negligence, erwards pronounced, for damages to the next Cent. Dig. S$ 151-156; Dec. Dig. § 95.*] of kin resulting from the negligent killing 3. DEATH (S. 24*)-ACTIONS-DEFENSES-IM- of plaintiff's intestate. Branch B of the ApPUTED NEGLIGENCE OF PARENT.

pellate Court for the First District reversed In an action by the personal representa- the judgment below without remanding the tives for damages to the next of kin resulting from the death of a child under Hurd's Rev. cause, and incorporated in its judgment the St. 1911, c. 70, providing that whenever the following finding of facts: "And the court, death of a person is caused by a wrongful act, upon the allegations and proofs in the recsuch as would, if death had not ensued, have ord in this cause contained, finds that Fredentitled the person injured to recover damages, erick E. Ohnesorge, the father of deceased, “then and in every such case" the person who would have been liable for the injuries, will be had personal charge of deceased at the time liable for their death, the right of the adminis- of the accident in question, and that Fredtrators to recover is defeated by the contribu-erick E. Ohnesorge was guilty of negligence tory negligence of the father and custodian of the child, even though an action by the child which directly contributed to the injury and for injuries had he lived would not have been consequent death of the deceased.” The Apdefeated.

pellate Court being of the opinion that the [Ed. Note.-For other cases, see Death, Cent. record involves questions of law, on account Dig. $$ 25, 26; Dec. Dig. & 24.*]

of principal and collateral interests, of such 4. DEATH (8 11*) – ACTIONS FOR CAUSING importance that the case should be passed DEATH-CREATION OF NEW CAUSE OF AC- upon by this court, granted a certificate of TION.

The act giving the personal representa- importance and allowed an appeal, which tives the right to sue for the death of one has been perfected by the administrators, killed by a wrongful act is not a survival stats and the cause is thus brought before this ute, but creates a new and independent right court for our consideration. of action not recognized at common law. !Ed. Note. For other cases, see Death, Cent.

The facts need only a brief statement. Dig. $$ 10, 15; Dec. Dig. & 11.*]

At the time William A. Ohnesorge was killed

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

he was a child three years and nine months | v. Chicago City Railway Co., 242 Ill. 269, old, and resided with his father, mother, and 89 N. E. 980. older brother in the city of Chicago. On [3] Having established the proposition that December 20, 1908, the father of the deceas- the deceased child might have recovered for ed had occasion to cross Halsted street at the injury had death not resulted, notwiththe intersection of Sixty-First street. At the standing the contributory negligence of the time of the accident appellee operated a father, appellants' second proposition is basdouble-track railway upon Halsted street. ed on section 1 of our statute on injuries. The deceased, in company with his father, That section is as follows: “Whenever the started to walk across Halsted street upon death of a person shall be caused by wrongthe crosswalk at the south side of Sixty- ful act, neglect or default, and the act, negFirst street. Halsted street runs north and lect or default is such as would, if death south. The deceased and his father were on had not ensued, have entitled the party inthe west side of Halsted street and on the jured to maintain an action and recover south side of Sixty-First street. In going damages in respect thereof, then and in east across Halsted street it was necessary every such case the person who or company to cross the north-bound and south-bound or corporation which would have been liable tracks of appellee. When they came to the if death had not ensued, shall be liable to an first track a south-bound car was standing action for damages, notwithstanding the with its rear end about even with the cross- death of the person injured, and although walk, or, as some of the evidence tends to the death shall have been caused under such show, with its rear end a few feet north of circumstances as amount in law to felony." the crosswalk. Before starting to cross Hal- Hurd's Rev. St. 1911, c. 70. sted street the father of deceased testifies Appellants contend that this statute gives that he looked south on Halsted street and a right of action, in case of death, in all saw the headlight of a north-bound car on cases where the injured party might have the easterly or north-bound track, . He maintained an action for the injury had thought that the car was some 800 feet south death not resulted. Appellants' construction of him. The father, leading deceased by the of this statute is not without plausible reahand, walked north far enough to pass the son, and there is some authority in other north end of the south-bound car that was jurisdictions which supports the construction immediately in front of him. He stepped contended for, where the question has arisen upon the north-bound track and a north- under statutes very similar to ours. Appelbound car struck both the father and child. lants' position receives varying degrees of The father was severely injured and the support. In Alabama-Southern Railway child was killed.

Co. y. Shipp, 169 Ala. 327, 53 South. 150; [1] There is no evidence that the father City of Birmingham v. Crane (Ala.) 56 South. made any effort to discover the approach of 725. In Connecticut-Wilmot v. MePadden, the north-bound car before stepping upon 78 Conn. 276, 61 Atl. 1069. In Iowathe easterly track. The contributory negli- Wymore v. Mahaska County, 78 Iowa, 399, gence of the father of the deceased being 43 N. W. 264, 6 L. R. A. 545, 16 Am. St. conclusivly established by the finding of the Rep. 449; Bradshaw v. Frazer, 113 Iowa, Appellate Court, the only question open for 583, 85 N. W. 752, 55 L. R. A. 258, 86 Am. St. consideration in this court is whether the Rep. 394. In New Hampshire-Warren v. Appellate Court properly applied the law to Manchester Street Ry., 70 N. H. 362, 47 Atl. the facts so found.

735. In New York—Lewin v. Lehigh Valley [2] The question presented is whether the R. Co., 52 App. Div. 70, 65 N. Y. Supp. 49; contributory negligence of a father who is Stenson v. Flick Construction Co., 146 App. in the personal control of his child at the Div. 66, 130 N. Y. Supp. 557; McKay v. time such child is killed by the negligent act Syracuse Rapid Transit Co., 208 N. Y. 359, of another is a bar to a suit brought by the 101 N. E. 885. In Ohio—Davis v. Guarnipersonal representative for the benefit of eri, 45 Ohio St. 470, 15 N. E. 350, 4 Am. St. the next of kin. Appellants' position upon Rep. 548; Wolf V. Lake Erie & Western this question is that the contributory negli- R. Co., 55 Ohio St. 517, 45 N. E. 708, 36 gence of the father is not a bar to the action L: R. A. 812; Cleveland, Akron & Columbia by the administrator, since it is the settled Ry. Co. v. Workman, 66 Ohio St. 509, 64 law of this state that in a suit by a child N. E. 582, 90 Am. St. Rep. 602. who is merely injured, to recover damages, Some of the above cases hold that the conthe contributory negligence of the father will tributory négligence of the parent is no denot defeat the action brought by the child. fense in bar of a suit by the representative This proposition must be conceded as sound of a deceased child, while others hold that law under the decisions of this court. Chi- the contributory negligence may be shown in cago City Railway Co. v. Wilcox, 138 Ill. mitigation of damages by deducting the share 370, 27 N. E. 899, 21 L. R. A. 76; Chicago that the guilty parent would otherwise be City Railway Co. v. Tuohy, 196 Ill. 410, 63 entitled to, but that such contributory negliN. E. 997, 58 L. R. A. 270; Richardson v. gence would not bar the rights of other unbeen taken by the Appellate Court for the according to the rules for the distribution of Fourth District of this state in Donk Bros. personal property of persons dying intesSoal & Coke Co. v. Leavitt, 109 Ill. App. tate. The funds arising from this source 385, and by the Appellate Court for the First were not a part of the estate of the deceased District in Chicago City Railway Co. v. person and had never been held to be liable McKeon, 143 Ill. App. 598. In both of these to the claims of creditors. The action is for decisions of the Appellate Court it seems to the sole benefit of the widow and next of be assumed that the question is an open one kin, and is given to compensate them for the in this state, and some of the decisions which pecuniary loss sustained by the death of the have a bearing upon the question are referred husband or relative. Chicago & Rock Island to and an attempt made to distinguish them Railroad Co. v. Morris, 26 Ill. 400. from the cases then before the court. The two [5] Since the passage of the amendment Ap ate Court cases above referred to and to section 123 of the act on administration of the decisions above cited from other states, estates, approved April 1, 1872, "actions to together with some references to text-books, recover damages for an injury to the person, are the authorities upon which the appellants except slander and libel,” survive the death rely. On the other hand, the appellee con- of the person injured; but it was held in tends that the question has been authorita. Holton v. Daly, supra, that the action only tively settled by previous decisions of this survived in cases where the death was from court, and that the rule established in this some cause other than the injury. If death state is in accordance with

accordance with the decided resulted from the injury, the only action that weight of authority in other jurisdictions. could be maintained was by the personal rep

[4] The right to maintain an action by one resentative under the Injuries Statute of who without his fault has suffered a person- 1853. The entire separation of the two causal injury through the negligence or wrong. es of action and the independence of each of ful act of another has always existed wherey- the other may be illustrated by supposing er the common law of England was in force. that a person receives an injury, for which This right is not created by the Legislature, suit is brought by him, a recovery had, and and our statute on injuries has nothing to

judgment satisfied. Afterwards the injured do with it. Under the common law an ac- party dies from the effect of the injury. The tion for personal injury did not survive recovery by the deceased, in his lifetime, for the death of the person injured, and prior the injury sustained by him, under a comto the Survival Act of 1872 (Laws 1871-72, mon-law action, would not bar a suit by his p. 108) $ 123, it was the law of this state that personal representative for the benefit of the an action for damages for personal injury widow and next of kin under the statute of abated with the death of the injured party

1853. Holton v. Daly, supra. We will now in all cases where the death was not the reconsider the question directly involved. sult of the injury. Holton v. Daly, 106 Ill.

One of the first cases that arose under the 131. În 1853 (Laws 1853, p. 97) the Legisla- act of 1853 was City of Chicago v. Major, 18 ture passed an act, which has been in force Ill. 349, 68 Am. Dec. 553. In that case the ever since, requiring compensation for caus- father and administrator of a child four ing death by wrongful act, neglect or de-years of age brought a suit against the city fault, and providing that suit therefor

of Chicago for negligence resulting in the should be brought in the name of the per- death of the child. The city had constructed sonal representative for the benefit of the a reservoir or water tank for the purpose of widow and next of kin. This statute was collecting water to be used by the city. The not a survival statute. It did not continue

tank was square in shape, constructed of to the personal representative the cause of wood, and sunken to the depth of several action that the injured party had under the was about three feet above the street level.

feet below the surface. The top of the tank common law, but it created a new and inde- The water in the tank had a depth of seven pendent cause of action never before that feet. The covering over the reservoir had time recognized as existing in this state. an opening in it. The child fell into the The cause of action brought by the personal tank through the opening and was drowned. representative was not intended to permit The question of the contributory negligence the widow and next of kin to recover for the of the parents in allowing the child to go uppain and suffering of the deceased or for on the street unattended was involved, and medical attendance and other expenses in- in commenting upon instructions given to the curred in and about being healed of the in- jury upon that question, this court, speaking jury. It was not designed by the Legislature by Mr. Justice Caton, on page 361 of 18 Ill., to give damages for any injury received by said: "In this as in all other cases it must the deceased, but to create a cause of action be left to the jury to determine whether the in the name of the administrator for the pe- parents of the child have been guilty of negcuniary loss which the widow and next of ligence in suffering the child to be in the kin may have sustained by reason of the streets. On this point the court justly indeath of the injured person, and the damag- structed the jury in the last instruction. es, when collected, were distributed, under The jury were there told that they must bethe statute, to the widow and next of kin lieve, from the evidence, that the defendant

was guilty of negligence which produced the, Wilcox, 138 Ill. 370, 27 N. E. 899, 21 L. R. A. injury in not keeping the tank in repair, and 76, was a suit brought by a minor, by his also that its parents were not guilty of negli- next friend, for personal injury. In that gence; and in another part of the charge case this court considered the questions inthey were told that the burden of proof rest- volved with great care. The previous cases ed on the plaintiff to show not only negligence in this state were re-examined. One of the on the part of the city but also that the contentions made there was that the contribparents were not negligent. We are satisfied utory negligence of the parent was a bar that the court committed no error in its deci- to the suit brought for the benefit of the sion on the questions of law which arose on child. The court there for the first time the trial."

distinguished between that case and a suit City of Chicago v. Starr, 42 Ill. 174, 89 Am. brought by the parent for loss of service or Dec. 422, was another case brought, under under the statute for wrongfully causing the the statute, for the death of a child six death of a child, and it was held that conyears old. The evidence in that case showed tributory negligence was no defense to the that the city of Chicago had permitted a suit by the child brought for compensation large counter to remain upon the sidewalk for his injuries, while if the suit were under of one of the public streets for two or three the statute for causing the death of the weeks prior to the accident. The counter child, or by a parent for loss of service, the was leaning against a board fence and occu- doctrine of contributory negligence would pied two or three feet of the sidewalk, leav- apply. ing ample space for pedestrians to pass to In the case of City of Pekin v. McMahon, and fro on the sidewalk. The deceased, 154 Ill. 141, on page 153, 39 N. E. 484, on with a number of other children, was play- page 487 (27 L. R. A. 206, 45 Am. St. Rep. ing upon the street, and the counter was 114), this court again announced the rule that pushed over or fell, causing the death of the contributory negligence of the parents is a child. At the time this decision was ren- defense to an action brought by the admin. dered, the doctrine of comparative negligence istrator for negligently causing the death of was recognized in this state. The court, in a child. A child eight years old was drowned an opinion by Mr. Justice Lawrence, dis- while playing on some floating timbers in a cussed the evidence, and reached the conclu- pit filled with water, which was under the sion that while the city was negligent in per-control of and maintained by the city. Mr. mitting the counter to remain upon the side Justice Magruder, who delivered the opinion walk, the negligence of the parents in of the court, said: "In Chicago City Railpermitting the deceased, a child six years of way Co. v. Wilcox, 138 Ill. 370 [27 N. E. 899, age, to go upon the street six blocks away 21 L. R. A. 76], we held that where a suit, from home was much greater in degree than for damages caused by the negligence of the the negligence of the city. The judgment defendant, is brought by a child of tender was reversed for the sole reason that the years, the negligence of his parents cannot evidence showed a degree of negligence on be imputed to him in support of the defense the part of the parents that precluded a re- of contributory negligence. Here, however, covery, even under the rule of comparative the suit is brought by the father as adminnegligence.

istrator of a deceased child. In such a case, The case of Toledo, Wabash & Western the contributory negligence of the parent, if Railway Co. V. Grable, 88 Ill. 441, was a it exists, may be shown in bar of the action.” suit by the administrator for negligence re- Chicago & Alton Railroad Co. v. Logue, sulting in the death of a child twenty-eight 158 Ill. 621, 42 N. E. 53, was an action, under months of age. The child was permitted to the statute, for negligently causing the death wander alone onto the railroad track. The of a child 21 months old. The opinion recmother, hearing the train coming, ran to ognizes the rule of the previous cases that rescue the child. She reached the track only the contributory negligence of the parents, in time to be struck by the locomotive, and if established, would prevent a recovery, but both she and the child were killed. A re- under the evidence in that case the question covery was had, which was reversed by this of contributory negligence was regarded as court for error in instructions in relation to one of fact and the judgment of the Appellate the degree of care required of the parties. Court was affirmed. The case is, however, a

. On page 443 of 88 Ill., this court, speaking direct authority in support of the general by Mr. Justice Scott, said: “Where there is proposition that in a suit by the personal repnegligence on the part of the injured party, resentative of a deceased child contributory or, as in this case, on the part of those negligence of the parent is a bar to the charged with the care of the injured party, action. contributing directly to produce the injury, True & True Co. v. Woda, 201 Ill. 315, 66 there can be no recovery unless such negli- N. E. 369, is another case where the previous gence is slight, and that of the defendant is decisions upon the point under consideration gross in comparison, in regard to that which were reaffirmed. While in that case, as in caused the injury complained of."

the Logue Case, supra, the evidence was not